Lakefront Becomes A Battle Zone High Water Mark Stirs Controversy

ST. CLOUD — Oak and cypress trees slung with Spanish moss throw a delicate pattern of shadows over an empty, 3-acre tract bordering East Lake Tohopekaliga near Rookery Drive.

Afternoons pass peacefully as sandhill cranes mingle with cows on the lakeshore. Calling birds make the only sounds for miles.

But this place has become a battleground.

On one side stands H.R. Thornton, engineer, surveyor and attorney for St. Cloud. He owns the land. He plans to develop it. And he is filling the lakefront with dirt.

FOR THE RECORD - ***************** CORRECTION PUBLISHED NOVEMBER 10, 1989 ****************** Terry Wilkinson, chief of the Department of Natural Resources' survey and mapping division, provided information about the ordinary high water mark on East Lake Tohopekaliga. Because of a reporter's error, the source was incorrectly identified in a front-page story in Sunday's Osceola Sentinel.****************************************************************************

On the other side stands Ed Moyer, biological administrator of the state Game and Fresh Water Fish Commission's Osceola office.

Moyer says Thornton is filling land that belongs to the state - land that was part of East Lake's original bed before the lake level was lowered when the federal government instituted flood control during the mid-1960s.

No one is accusing Thornton of doing anything illegal. But if Thornton carries through with his plan to put houses on this land, says Moyer, the resulting runoff and septic tank effluent will seep straight into the lake. And Moyer, whose agency will begin a massive muck removal and restoration project in the lake Dec. 1, does not want to see that happen.

''It would be like going backward,'' he says. ''This is just one more step toward destroying the lake.''

At issue is the lake's ordinary high water mark, the point above which water does not usually rise. Land below the mark is generally considered sovereign and owned by the state.

In the case of East Lake Tohopekaliga, says Mark James, investigation supervisor for the state Department of Environmental Regulation, the historical high water mark was 60.1 feet above sea level. The mark was changed to 58.7 feet when the lake level was lowered during the 1960s.

But in 1976, the DER did a study of ordinary high water marks and concluded that the proper level for East Lake was the original 60.1-foot level.

''Anyone filling in land below that would be filling in land that we claim as ours,'' says DER Investigation Bureau Chief Terry Wilkinson. Alerted by Moyer, the DER is looking into Thornton's activities on the land.

The investigation could take several months, says James. And if the DER finds that Thornton has been filling in state-owned land, it will either require him to buy it for one and a half times its market value or insist that he relinquish it to the state.

''That means no more filling or no more use of the land,'' says James. ''Period.''

Thornton is not disturbed.

''The ordinary high water mark is 58.7,'' he says. ''That's my position and that's been my position all along. Everything I've done is legal.''

Until the issue is resolved, Osceola's commissioners have banned building permits on all lakefront property. They are concerned that if Thornton can claim formerly submerged land as his own, so can others.

''We already have other people that have told my staff they plan to do the same thing,'' says Moyer. ''A lot of people are watching to see how this thing shakes out.''

According to Moyer, there are 1,700 acres of lakefront land in Osceola County that would be vulnerable to private ownership if the state allows filling between 58.7 feet and 60.1 feet.

Given that information, says Osceola Commission Chairman Charles Owen, ''I think we ought to be very concerned about what goes on around that lake.''

The commissioners and County Administrator Bill Goaziou side with Moyer.

''It stinks,'' says Goaziou. ''He's trying to build up a little ridge that shows a fake water line so that everything will look OK and he can build on it. I think what he's done is totally inappropriate. . . . You can build without ruining the environment.''

County officials are also irritated because they say Thornton, who acquired the land in 1988 through a quit claim deed, never paid for it.

The land was probably overlooked by the men who surveyed the state in 1845, says Day. And because it didn't appear on the survey, it was never claimed by the federal government. Consequently, it was never deeded over to the state.

''Go back to 1845 where you had crude instruments to survey with,'' says Day. ''And it was hot. I mean, when you look at all the surveys, the lakeshores are squared. That's not natural. In reality, most of them are curved. . . . To me, I think it was just an oversight.''

According to Day, Thornton surveyed the land himself and laid legal claim to it. He has been paying taxes on it, and last year he sought and got approval from county commissioners to replat it for development.

''I filed a plat that was examined by the county planners and then approved by the county planning commission after a public hearing,'' Thornton says. ''And then the commissioners approved it. Go look at it and you'll see it runs 58.7 feet.''

And it does.

But, says St. Cloud real estate salesman Chuck Dunnick, ''I guarantee you no one knew what was going on.

''H.R. Thornton is a researcher. He is an historian. And he will research stuff and find an angle,'' says Dunnick. ''He thrives on finding those kinds of deals and making them work. The man is sharp.

''What he did is absolutely above-board and he found it before anyone else found it and I admire that. There's a lot of people walking around this county wishing they dadgum had thought of it first.''

Even Goaziou agrees.

''I have to say that he's a genius. He's the first and only guy who's ever figured out how to do it. He's a surveyor, he's an engineer, he's an attorney. And when you have all those arts combined in one person, he's a very bright man.''